Optus Mobile Ltd v Canada Bay City Council - [2004] NSWCA 446

NEW SOUTH WALES COURT OF APPEAL

CITATION: Optus Mobile Ltd v Canada Bay City Council [2004] NSWCA 446 revised - 6/12/2004

FILE NUMBER(S):
40977/04

HEARING DATE(S): 29 November 2004

JUDGMENT DATE: 29/11/2004

PARTIES:
Optus Mobile Ltd - Claimant
Canada Bay City Council - Opponent

JUDGMENT OF: Giles JA

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 40906/04

LOWER COURT JUDICIAL OFFICER: Lloyd J

COUNSEL:
T S Hale SC & M J McGrowdie - Claimant
D Baird & P Whitford (Solrs) - Opponent

SOLICITORS:
Minter Ellison - Claimant
Maddocks - Opponent

CATCHWORDS:
Stay of order pending appeal - dispute over whether development consent required for telecommunications facility - Council brought proceedings in Land and Environment Court - Optus went ahead and erected facility - held development consent required - proceedings adjourned so application could be made for development consent - but order preventing use of facility in the meantime - whether order to be stayed - balance of convenience - use illegal and Optus went ahead at its own risk - Council had benefit of judicial decision also giving it collateral advantage of allaying concerns, even if ill-founded, about electromagnetic emissions - stay refused. ND

LEGISLATION CITED:

DECISION:
Notice of motion filed 10 November 2004 dismissed with costs. Continue the existing stay for seven days from today.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40977/04
LEC 40906/04
GILES JA
Monday 29 November 2004

OPTUS MOBILE LTD v CANADA BAY CITY COUNCIL

Judgment

GILES JA: This is an application for a stay, pending appeal, of an order made by Lloyd J on 5 November 2004.
In the proceedings in the Land and Environment Court the opponent claimed orders restraining the claimant from maintaining a telecommunications facility erected on premises at 97 Majors Bay Road, Concord. The issue between the parties, which I will describe in a little more detail, was whether or not the claimant needed development consent for the erection of the facility. His Honour held that it did. He adjourned the proceedings to enable the claimant to apply for development consent and for any application to be considered and determined, but ordered that it cease the transmission of telecommunication signals from the facility until further order. That is the order which the claimant wishes to stay.
The legislative background can be described quite briefly. Under the Telecommunications Act 1997 (C’th) a carrier, of which the claimant is one, is entitled to install certain telecommunications facilities and the entitlement to do so overrides the Environmental Planning and Assessment Act 1979 in the event of inconsistency. A carrier may install a facility if it is a low impact facility as defined. A facility is not a low impact facility if the area in which it is installed is an area of environmental significance. An area is an area of environmental significance:
“ … if, under a law of the Commonwealth, a State or a Territory, it consists of a place, building…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] NSWCA 446
Decision Date: 29 November 2004

CaseChat Overview and Summary

Optus Mobile Ltd sought a stay of an order made by the Land and Environment Court of New South Wales, which had determined that development consent was required for a telecommunications facility erected by Optus. The Council had initiated proceedings in the Land and Environment Court, and despite Optus proceeding with the erection of the facility, the Court found that development consent was indeed necessary. The proceedings were adjourned to allow Optus to apply for consent, but an interim order was made preventing the use of the facility.

The central legal issue before the Court was whether the interim order preventing the use of the telecommunications facility should be stayed pending Optus's appeal against the primary decision. This required the Court to consider the balance of convenience between the parties.

The Court reasoned that Optus had proceeded with the erection of the facility at its own risk, knowing that development consent was likely required and that its use would be illegal without it. Furthermore, the Council had the benefit of a judicial decision supporting its position, which also served to allay public concerns regarding electromagnetic emissions, irrespective of the scientific validity of those concerns. In light of these factors, the Court concluded that the balance of convenience did not favour granting a stay.

Consequently, the notice of motion filed by Optus was dismissed with costs. However, the existing stay was continued for a period of seven days from the date of the decision.

Orders

Orders of the court

Notice of motion filed 10 November 2004 dismissed with costs. Continue the existing stay for seven days from today.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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